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Writ Petition No. 27 of 1957, decided on 17th November 1957

, S. 11‑Provision ultra vires of Art. 5 of Constitution of Pakistan and void tinder Art. 4 thereof‑Constitution of Pakistan Arts. 4 and 5.

Section 11 of the Frontier Crimes Regulation is in consistent with the provision of law embodied in Article 5 of the Constitution, inasmuch as the accused persons who can be dealt with under that section have been left at the mercy of the arbitrary will of the authorities concerned, for whose guidance in the matter, no provision has been made in the Regulation. It is nowhere provided how the authorities are to be guided for selecting cases or persons for reference to the Council of Elders. It is obvious that the will of the selecting authority is made supreme in the matter, and the discretion to make a selection is not a guided and controlled discretion, but is absolute and unfettered one. The preamble of the Frontier Crimes Regulation which says that the measure was adopted further to provide for the suppression of crime is hardly a guide for achieving this purpose. Therefore section 11 of the Frontier Crimes Regulation is ultra vires of Article 5 of the Constitution of Pakistan and is, therefore, void under Article 4 thereof.

Khair Muhammad Khan v. The Government of West Pakistan P L D 1956 Lah. 668; Jibendra Kishore and others v. The Province of East Pakistan P L D 1957 S C (Pak.) 9 and Waris Meah v. The State P L D 1957 S C (Pak.) 157 ref.

Malik Toti Khan and others v. The District Magistrate and others P L D 1957 Quetta 1 ref.

Malik Behram Khan v. The State P L D 1957 Kar. 709 distinguished.

Mirza Muhammad Ahmad for Petitioner. Mian Mushtaq Ahmad A. A. G. for Respondent (State).

Dated of hearing : 17th October 1957.

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